Pacific Mutual Life Insurance v. McCabe

Opinion of the Court by 'Chief Justice Hobson — • Affirming. The Pacific Mutual Life Insurance Company issued to William McCabe on July 21, 1911, a policy of insurance, his brother, Thomas McCabe, being named as beneficiary, by which it insured him “against the results, hereinafter set forth, of and caused solely by external, violent and accidental means at once producing visible [271] and external mark upon tke body, such means so producing suck mark kereinafter called accident, suck accident kappening during tke term of and while tkis policy is in full force and effect; against tke effects, kereinafter set fortk, of illness, and promises to pay benefits as kereinafter set fortk. * * * 1. Disability benefits at tke rate of forty ($40.00) dollars per month, not exceeding twenty-four montks, that suck accident, independently of all other causes, immediately totally and continuously disables tke insured from tke time of suck accident from tke performance of any and every kind of duty pertaining to tke insured’s occupation. * # * 3. If any of tke total losses specified in tke following table of total loss benefits shall result from suck accident, independently of all other causes, within ninety days from tke kappening of suck accident, tke company will pay: For loss of 1. Life, Four Hundred ($400.00) Dollars (Tke principal sum of tkis policy). (Here follows table.) If any of tke losses specified in tire above table of total loss benefits shall result from suck accident, independently of all other causes, after ninety days and within twenty-four montks from the kappening of suck accident, provided the insured is continuously and totally disabled from engaging in any and every work and occupation for wages or profit from tke kappening of suck accident to tke date of suck total loss, then tke company will pay tke amount specified in tke above table of total loss benefits, and in addition, disability benefits provided for in clause 1 hereof for tke time between date of accident and date of suck total loss. * * * 5. Illness benefits at the rate of forty ($40.00) dollars per month for tke time, not exceeding six montks, that said insured is necessarily and continuously confined inside tke house and regularly visited in tke house by a legally qualified physician by reason of disease that is contracted and begins after tkis policy has been maintained in force continuously for two montks.” Tke policy also contained these provisions: 10. “In tke event of any claim arising under tkis policy (irrespective of its cause) due directly or indirectly, wholly or in part, to any chronic disease or infirmity, tuberculosis, rheumatism, paralysis, apoplexy, orchitis, neuritis, locomotor ataxia, lumbago, strains, lame back, sciatica, vaccination, Bright’s disease, dementia, insanity, vertigo, fits, hernia, or in tke event of any [272] accident otherwise covered by this policy resulting in hernia, or either accident or illness of which there shall be no visible marks on the body (drowning excepted); then and in all snch cases benefits shall be paid solely under illness benefits as provided under clause 5 of this policy, but in no event for an amount in excess of the amount payable for one month’s house confinement under said clause, anything to the contrary herein notwithstanding. But no indemnity shall be payable under this policy for any loss due directly or indirectly, wholly or in part, to any venereal disease, or to any disease not common to both sexes. 11. “In the event of any claim arising under this policy (irrespective of its cause) due directly or indirectly, wholly or in part, to sunstroke, peritonitis, appendicitis, abscesses, ulcers, blood poisoning, infection, or contact with poisonous or infectious substances, then and in all such cases benefits shall be paid solely under illness benefits as provided under clause 5 of this policy; except that in the event of claim arising due to infection or blood poisoning following immediately after and as a direct result of accident, such infection or poisoning having its inception while insured is under the care of a physician, then in such case benefits shall be paid under accident benefits as provided in clauses 1, 2 and 3 of this policy. d. “The right'to make claim for one of the above specified results of any accident or illness or disease shall exclude all other claims based upon the same accident or illness or disease, and the" right to make any claim except a claim under clauses 1, 2 and 5 shall cause this policy to cease and it shall be surrendered to the company.” William McCabe was a painter by trade, and on December 12,1911, while the policy was in force, he suffered a fall by which he sustained a severe bruise on his left hip. He was confined to his house by the' injury and was treated by a physician who administered to the external wound. The wound got better and on January 6 Mc-Cabe applied for a disability benefit under clause 1 of his policy. The amount, $33.00, was paid to him and he receipted to the company for it, he then supposing that he would be able to go to work within a month from the time he was injured; but instead of getting better after January 12, he began suffering pain in his stomach and [273] side, and was not able to do any work. On tbe evening of January 29, be ate two soft boiled eggs for supper, said be did not feel well and would go to bed. He went to bed and tbe next morning at nine o’clock was found in bed dead, nobody having seen him from tbe time be went to bis room until that time. This suit was brought by tbe beneficiary against tbe insurance company to recover $400, tbe amount for which bis life was insured. On a trial of tbe case in tbe circuit court the plaintiff recovered. The defendant appeals. Tbe proof on tbe trial showed in addition to tbe facts we have stated that after bis death, an autopsy was performed upon bis body which disclosed the fact that there ;was a bole as large as a silver quarter in tbe transverse colon; that nature, attempted to close tbe aperture and tbe escaping matter passed into tbe omentum; that tbe matter escaping from tbe colon and gathered in tbe omentum was the cause that tbe bowels instead of being in a natural condition, were found stuck together. The surgeons who testified on tbe trial testified that death ensued when tbe omentum no longer contained this matter and it escaped into tbe peritoneum. They also' testified that from tbe condition in which they found tbe bowels, tbe injury to tbe colon was tbe cause of tbe trouble; that this might have came from such a fall as we have described and that tbe condition of tbe bowels indicated that tbe trouble with tbe colon bad existed some weeks. Their testimony warranted tbe jury under tbe facts in concluding that tbe fall caused tbe injury to tbe colon and tbe injury to tbe colon caused tbe effects they found in tbe body of tbe deceased; for tbe insured was never well after the accident. 1. It is insisted for tbe appellant that William Mc-Cabe having collected a disability benefit no recovery can be bad for tbe loss of his life. But it will be observed that by clause 3 of tbe policy, tbe company was obligated to pay tbe amount specified in tbe table of total loss benefits if be died in 90 days and in addition disability benefits provided for in clause 1. Tbe insured was by this clause of bis policy entitled to not only tbe disability benefit for one month, but tbe $400 for tbe loss of bis life was also payable when be died on January 29. Clause “ d” was not intended to conflict with this clause. Tbe words used therein are “tbe right to make claim.” In other words, tbe right to make claim for certain things under tbe [274] policy excluded all other claims based upon the same accident, illness or disease. There is nothing’ in this clause properly construed to show that the payment of a disability benefit in any way affected the right to collect the principal sum of the policy in case the insured died, the purpose of clause “d” being simply to show that the policy did not contemplate a number of claims under the different provisions of the policy such as disability benefits and sick benefits also for same illness or accident; but such a limitation must not be read as conflicting with an express provision in the previous part of the policy, giving a right to collect the disability benefit and also the death loss. The insurer selects his own language and in case of doubt, the policy will be construed in favor of the insured, and the positive undertaking in one part of the policy will not be construed as negatived by a doubtful clause in another part. 2. The insured did not die of hernia; the term has' a well defined meaning, and so clause 10 has no application. He died of peritonitis according to the testimony, and clause 11 applies, but by that clause in the event of claim arising due to infection and following immediately after, and as a direct result of accident, and having its inception while the insured is under the care of a physician, then in such case, accident benefits shall be paid as provided in clauses 1 and 3 of the policy. The proof for the plaintiff showed that he died of infection following immediately after and as the direct result of an accident ; that the infection had its inception while he was under the care of a physician, although the physician did not discover it, as it was an internal trouble and not then manifesting itself by anything externally. The fair meaning of clause 11 is that for the diseases therein mentioned only sick benefits will be paid as provided in clause 5 unless there is an infection, the direct result of accident, and this infection produces the disease. 3. The instructions of the court fairly submitted to the jury the law of the case as we have outlined it, and the evidence warranted the jury in the verdict they found. There was no error in the admission or rejection of evidence. The court properly refused to admit in evidence the verdict of the coroner’s jury. (Aetna Life Ins. Co. v. Milward, 118 Ky., 716.) Judgment affirmed.